Including a song in your advert is a great marketing strategy. A song that gets everybody subconsciously singing will also get them thinking about your brand. Sometimes the best way to do that is to use a song that is already well-known and catchy. We all recognise The Potbelleez’ ‘Don’t Hold Back’ song and slogan used for Jeep, the gorilla drumming to Phil Collins’ ‘In the Air Tonight’ in the Cadbury ad and the Apple iPod commercial featuring Jet’s ‘Are You Gonna Be My Girl’. There are, however, limits on how you can use someone else’s song in your advert without infringing copyright.
Copyright in Music
The Copyright Act 1968 (the Act) provides automatic protection to the owners of creative work. Copyright owners of music have exclusive economic rights to:
- publish; and
- communicate their music to the public.
These rights last the life of the owner plus another 70 years. The only exception is a sound recording. The recording is protected under the Act for 70 years from the release date of the recording. Once copyright expires, the work enters into the public domain and anyone can use it.
An infringement of copyright occurs when someone uses copyrighted material in a way that is exclusive to the owner, without permission from the owner. Therefore, using music in an advert without permission would most likely be infringing the music owner’s exclusive rights.
The common belief that you can avoid copyright infringement by using less than 10% of the work is incorrect. You cannot use 18 seconds of a 3 minute song and be confident that you are not infringing copyright. No set percentage determines copyright infringement. It is about quality rather than quantity.
Infringing copyright depends on whether there is a reproduction of a substantial part of the song. Rather than chopping and changing a song to try to not to use a substantial part, it is easier to save yourself the headache and seek permission from the owner. The most common way to obtain permission to use a song in your advert is to apply for a synchronisation (sync) licence.
A sync licence sets out terms allowing you to use the music. It addresses that the copyright owner consents to the use and has or will receive compensation. The terms of the licence will vary for each agreement, depending on the:
- owner of the music;
- cost of production;
- success of the song; and
- purpose of the licence.
With the dying sales of records, vinyls, cassettes, CDs and even iTunes downloads, many artists rely on income from sync licences.
Sometimes it is hard to figure out who owns the rights to a song. There is the writer, the producer, the musician, the singer, the DJ, the record label and the publisher.
As it can be impractical, and sometimes impossible, to contact the owner of a song, there are copyright collecting societies who can do it for you. These collecting societies are not-for-profit organisations, which administer and/or licence music on behalf of their members and then distribute licence fees where appropriate.
|Australian Collecting Societies|
|APRA (Australasian Performing Right Association) AMCOS (Australasian Mechanical Copyright Owners Society)||
APRA and AMCOS used to be two separate organisations but in 1997 they became one.
APRA was established to manage performance and communication of the music of its members while AMCOS managed the reproduction of music in various formats.
Together, they do it all for both local and international songs.
|PPCA (Phonographic Performance Company of Australia)||PPCA administers and licences sound recordings for record labels.|
Pay Attention to the Terms
Even if you receive a licence to use a song, it is vital to read the terms of the agreement to ensure that you understand exactly what the licence grants. You should particularly pay attention to:
- How much of the song you can use. Sometimes, the licence will specify the length and part of the song that you can use. In this situation, using more of the song or a different part would be outside the scope of the licence and constitute potential copyright infringement.
- The purpose of the licence. A licence will typically specify its purpose. Therefore, just because you have a licence for one advert, this does not necessarily mean that you can use it for any other advert or video.
- The term of the licence. Ideally, you want the licence to last forever, as a perpetual licence. But, the owner may have reasons to restrict the licence to a specific term.
- Exclusivity. An exclusive licence means that no one else can use the song. Obtaining an exclusive licence may be unlikely because copyright owners can maximise their profits by entering into various licences. However, you may be able to negotiate an exclusive licence for your industry. For example, if your advert is promoting your new clothing brand, you may be able to obtain an exclusive licence for promoting clothing.
The more rights you obtain, the higher the fees are likely to be. Negotiation is key: give a little to take a little (or a lot if you are a good negotiator!).
If you are looking for music to use in your next advert without infringing copyright, consider contacting collecting societies to obtain a licence and seek permission to use the song. If you need assistance negotiating or reviewing a licence, get in touch with LegalVision’s intellectual property lawyers on 1300 544 755 or fill out the form on this page.
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